As artificial intelligence (AI) is increasingly being used as a tool to resolve complex technical problems, a philosophical question arises as whether an AI system could or should be named as an inventor. In a recent communiqué the Legal Board of Appeal of the European Patent Office (EPO) has confirmed that under the European Patent Convention (EPC) the inventor must be a person with legal capacity, which could not be the case of an AI system.

The issue

The communiqué refers to two European patent applications submitted by a same applicant (Mr Thaler, Stephen L). The first application  EP 18 275 163 entitled “Food container” relates to a shaped container provided with a wall having a fractal profile with corresponding convex and concave fractal elements. The second application EP 18 275 174, entitled “Devices and Methods for attracting enhanced attention” relates to a method for providing a pulse train to an LED or lamp at a frequency and fractal dimension that is highly noticeable to humans.

In the designation of inventor the applications state that the invention was autonomously generated by an artificial intelligence dubbed DABUS. During examination the applicant submitted that the invention had been made by a machine and that the machine “identified the novelty of its own idea before a natural person did“. It was argued that the machine should be recognised as the inventor and that the applicant, as the owner of the machine, was an assignee of the IP rights created by the machine. The applicant further argued that acknowledging machines as inventors would facilitate the protection of the moral rights of human inventors and allow for recognising the work of the machine’s creators.

The Receiving section informed the applicant that the designation of the inventor filed was deficient as it did not meet the requirements of Article 81 and Rule 19(1) EPC. In particular that a designation of the inventor must contain a family name, given names and full address of the inventor who must be a natural person.

The applicant stressed that accepting AI systems as inventors would allow applicants to indicate the truthful inventor and argued that not accepting AI systems as inventors would exclude inventions made by AI from patentability, contrary to Articles 52-57 EPC.

Although the applications may have been found otherwise patentable, the EP applications were rejected on the basis that indicating the name of a machine (DABUS) does not meet the requirements of Rule 19(1) EPC.

The decision of the Legal Board of Appeal

Several points of the decision are worth being highlighted:

  • At point 22 it is noted that “ Names given to natural persons, …serve not only the function of identifying them but enable them to exercise their rights and form part of their personality. Things have no rights which a name would allow them to exercise.”
  • At point 23 it is mentioned that “The EPC does not provide for non‑persons, i.e. neither natural nor legal persons, as applicant, inventor or in any other role in the patent grant proceedings. In the context of inventorship reference is made only to natural persons. This indicate a clear legislative understanding that the inventor is a natural person”.
  • At point 27 it is stressed again that “AI systems or machines have at present no rights because they have no legal personality comparable to natural or legal persons…Where non‑natural persons are concerned, legal personality is only given on the basis of legal fictions…. In case of AI inventors, there is no legislation or jurisprudence establishing such a legal fiction.”
  • Regarding other jurisdictions it is noted at point 29 that “the understanding that the inventor is a natural person appears to be an international applicable standard. National courts of various countries have issued decisions to that effect…No national law has been determined which would recognise a thing, in particular an AI system or a machine, as an inventor”.
  • Concerning the derivation of rights point 30 mentions that “The statement indicating that the applicant acquired the right to the European patent from DABUS as employer and the correction of this statement to indicate succession in title do not meet the requirement of Article 81 and Article 60(1) EPC. AI systems or machines can be neither employed nor can they transfer any rights to a successor in title”.

Following the above decision, the applicant filed an appeal in cases J8/20 and J9/20. The Legal Board of Appeal has now dismissed the appeal and confirmed the decision to refuse the applications.


Designation of inventor is a formal requirement of a European patent application, that is independent from the substantive patentability requirements. The term “inventor” refers to a natural person only and under the EPC the inventor must be a person with legal capacity. The owner of an AI system cannot be a successor in title because AI systems have no legal personality.

Artificial Intelligence is likely to stimulate further debates, however as far as the question of inventorship is concerned the EPO has provided a clear answer.


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